Out of Debtors’ Prison, With Law as the Key (Huff Post)
By Tina Rosenberg
When Jack Dawley returned in 2007 to his hometown, Norwalk, Ohio, after eight years in prison and on parole in Wisconsin, he knew getting by would be difficult. He had a felony conviction and a history of past drug and alcohol abuse, although he’d been sober since 1999. He was unprepared for another obstacle, however: A few years later, he would keep landing in debtors’ prison.
Dawley did all right at first. For four years, he worked construction jobs and paid down the $1,400 in fines and court fees he owed the municipal court in Norwalk for domestic violence and D.U.I. convictions during his drunken years. But in 2012, he injured his back, lost his job and missed a payment on his court debt.
He was arrested and sentenced to jail for 10 days. When he got out, he had 90 days to make a payment. He failed, and went back to jail. A cycle was beginning: jail every 90 days.
Later in 2012, he took a job as a cashier. He was on his way to cash his first paycheck when he was pulled over and arrested, again for an infraction stemming from his debt. Back in jail, he missed eight days of work. When he got out, his job was gone. He stayed out of jail, but was homeless for the next two years.
Although the United States outlawed debtors’ prison two centuries ago, that, in effect, is where Dawley kept going.
Protesters outside the Pine Lawn Police Department and Municipal Court in St. Louis County, Mo.Credit Whitney Curtis for The New York Times
It is crowded there. The most infamous example today is Ferguson, Mo. There, the recent Department of Justice investigation of the police and courts portrays a system designed to jail the poor for their poverty.
The purpose of law enforcement in Ferguson, said the Justice Department, is not public safety, but revenue generation. The city’s second-largest source of income is fines and fees paid by citizens, the vast majority stemming from parking, traffic or other very minor infractions. The police find any excuse to arrest black residents and charge them with multiple violations. The courts then extract exorbitant fines and fees. Those who cannot pay are threatened with jail, and many go.
Ferguson may be an extreme — or it may not — but across America, courts levy fines and fees totaling hundreds or thousands of dollars on misdemeanor offenders, and jail them when they cannot pay.
You don’t go to jail for walking your dog without a leash, making an illegal left turn or burning leaves without a permit, but in many states you will go to jail if you can’t pay the resulting fees and fines. We have a two-tier system: The rich pay fines. The poor go to jail.
The rise of debtor’s prisons has been well documented in the last few years in reports by Human Rights Watch and the American Civil Liberties Union(pdf) and by news investigations. (A series by NPR’s Joseph Shapiro and a New Yorker article by Sarah Stillman are particularly good.) In the past two years, though, attention to this issue has started to produce change.
First, some background: Courts didn’t always charge defendants fees, but now they do in every state. In the 1980s and 1990s, as prison and jail populations rose alongside anti-tax fever, legislators began shifting the burden of paying for justice from the taxpayer to the offender. They raised fines for misdemeanors and imposed dozens of fees and surcharges.
In most states, you pay to be arrested, pay for a public defender, and pay for your own probation. In some, you emerge from jail owing room and board or are billed for a jury trial. Fines and fees have become important sources of city income, giving legislators and judges an incentive to assess large sums for minor offenses — and to compel payment by jailing those who don’t pay, no matter what their economic situation.
The injustices are compounded when governments contract with private companies to manage probation, as they do in 13 states, according to Nusrat Choudhury, a staff attorney at the American Civil Liberties Union. These companies offer their services free to a city — and then charge offenders fees sometimes as large as or larger than their debt, with jail the penalty for nonpayment. In many cases, debt collection is the only service they perform. Human Rights Watch has said that most states that use private probation ”do not currently subject probation companies to any meaningful oversight or regulation at all.”
Debtors’ prison is both senseless and illegal. Jailing defendants often costs far more than they owe, and makes it very difficult for them to pay. Going to jail each time a payment is missed isn’t conducive to holding down a job. And in 1983, the Supreme Court ruled that courts must inquire about a defendant’s ability to pay fines and can jail only those who can pay but won’t. Nonpayment of court fees can be punished by garnishment, but not jail.
Yet defendants don’t know this. They don’t know they can ask for a hearing on their ability to pay, with counsel. Courts routinely fail to suggest a hearing or ask any questions about ability to pay.
Ohio has been a leader in reforming debtors’ prison. The impetus came from the A.C.L.U.’s Ohio chapter, which, in 2013, issued a report that told stories of affected people (including Dawley), and calculated how much money the state was losing by jailing people for debt.
The report found that in many municipal courts and mayors’ courts, indigent offenders were jailed without hearings about their ability to pay. Ohio law said that people jailed for nonpayment (which should not happen if they are indigent) should get a $50 credit against their debt for each day in jail. But courts routinely ignored this.
The A.C.L.U. sent its findings to state officials, including Maureen O’Connor, Ohio’s chief justice, who asked immediately for a meeting.
O’Connor assembled a committee of judges to draft a memo called a bench card (pdf), which she issued to every municipal court judge. The card sets out the law — most important, the requirement to determine ability to pay. It lists the steps for doing so, and acceptable and unacceptable ways to collect fines and fees. O’Connor asked the A.C.L.U. to let her know of new complaints.
“Since the bench card, complaints have fallen precipitously,” said Mike Brickner, senior policy director of the A.C.L.U. Ohio. “When we have substantiated claims, we have alerted the Ohio Supreme Court and they have intervened — and that has changed things.” People jailed also received retroactive credit for their jail time.
One beneficiary is Dawley. He stayed out of jail after 2012 by borrowing small sums from friends to make his payments. He eventually got a job in a produce warehouse, where he rose to quality control inspector. Now he works as a paint finish master, reconditioning trucks. No longer homeless, he’s been in his own apartment for a year. And, aided by credits for time served, he’s finished paying his debt.
Serious problems remain in Ohio; there will always be abuses in a system funded by offender fines and fees. But the use of debtors’ prison has been greatly reduced. Why so easily? O’Connor said all that was needed was to correct misperceptions. “I don’t think judges were intentionally not following the law,” she said. “It wasn’t: ‘I don’t care what the law is and I’m going to do it my way.’ This was clearly an area they needed to brush up on.”
Brickner believes that once judges realized that their cities were losing money by jailing the indigent, the practice became less attractive. Another possible reason is that most people can imagine themselves affected. “Anyone can get a traffic ticket,” said Sarah Geraghty, a senior attorney at the Southern Center for Human Rights, who represents plaintiffs in debt cases.
Since Ohio’s bench card, legislatures or courts in several other states have issued rulings protecting offenders from debtors’ prison. In Washington and, yes, Missouri, state supreme courts have ruled that courts must determine an offender’s ability to pay, to set fees and fines accordingly, and to jail only those who can pay but willfully refuse. (Class action lawsuits against Ferguson and the neighboring city of Jennings have just been filed in federal court.) Colorado passed a similar law last year.
The most remarkable example is emerging now in Georgia. That state started using private probation in 1991, and became the state most dependent on it. About 80 percent of Georgians on misdemeanor probation — 175,000 people at a time — are supervised by for-profit companies that, according to Human Rights Watch, earn about $40 million a year from offenders.
The A.C.L.U. and the Southern Center sued, and last week won a settlement that will produce an Ohio-style bench card in DeKalb County. Meanwhile, Georgia’s government is instituting reforms. Just after his election in 2011, Gov. Nathan Deal, a Republican, established a bipartisan council to propose changes in the criminal justice system. Last year, he asked the council to follow up on a state audit’s finding that the ways courts oversaw misdemeanor probation were leading to abuses.
The council’s recommendations (pdf, page 21) include better oversight and transparency, and caps on fees to private companies that oversee pay-only probation. Judges must determine an offender’s ability to pay, and waive or modify fees and penalties for the indigent. These reforms are included in a bill that passed the Georgia House and is expected to pass in the Senate.
It’s a remarkable example of bipartisan compromise. Probation reforms are endorsed by the advocacy groups and the probation companies too. “As with any industry, you have good actors and bad actors,” said W. Thomas Worthy, a former legal aide to the governor who was co-chairman of the council, and now is director of governmental affairs at the state bar. “The good ones knew major reforms were coming, and came to the table.”
John Bozeman, a lobbyist for the Community Corrections Association of Georgia, said the consequences could have been much more onerous for the companies. “They could have written a bill where our guys could not have functionally operated. Instead, it was: How can we solve the problem?”
Last year, the legislature passed a very different bill that shielded companies in secrecy (Governor Deal vetoed it). That only a year later they felt the need to compromise shows that public outrage can, occasionally, accomplish something.
“People who had minor interaction with the criminal justice system were sucked further in for no good reason other than to enrich a private company,” said Geraghty. “We’ve reached a point in this state where the abuses by many of these private companies have been so flagrant and so frequent that people in power, the governor and others, agree that the time has come for significant reform.”